Police report still secret in Jo'Anna Bird case

Copy of an undated photo of Jo'Anna Bird

Copy of an undated photo of Jo'Anna Bird with her children. (Credit: Handout)

By their own admission, Nassau police failed time and again to protect a domestic violence victim named Jo'Anna Bird from her abuser, who eventually tortured her to death as she sought refuge in her New Cassel home.

But more than three years after the 2009 stabbing, despite a still-secret 700-page police report on the Bird case, the public knows little about how the cops failed, how many have been scrutinized -- or even who those officers are.

That's because of a state law dating back to 1976 known as 50-a, part of the state civil rights law that keeps all police personnel records secret except under limited circumstances. "All personnel records," the law states, "used to evaluate performance toward continued employment or promotion . . . shall be considered confidential."

Supporters, including the sponsors of the bill, police forces and officers' labor unions, say the law is essential to protect the privacy and due process of the public servants who are most susceptible to unfounded complaints from the public.

"As with all citizens, the civil rights of police officers must be protected," according to a legislative memo written before the law passed. "These rights are sacred and must be given away only to the paramount interest of the public good."

But critics, including some lawyers, civil liberties groups and freedom of information advocates, say the law prevents the public from knowing how the police are policing themselves.

"As a result of 50-a, those public employees who have the most control over our lives are the least accountable," said Robert Freeman, executive director of the state's Committee on Open Government. "If you don't want to go shop at Macy's, you can go to Target, but we all have to deal with one government."

Varies by department

The law, and the way Long Island police forces interpret it, means the public rarely knows the outcomes of police internal investigations -- unless officers personally agree to make their personnel records public, the details emerge in legal proceedings or a judge orders their release.

For example, police officials say 50-a would prevent them from detailing what happened in such recent cases as the off-duty Nassau police officer or officers who, authorities say, had been drinking before shooting an unarmed cabbie in Huntington Station, or the unexplained shooting by Suffolk police of an unarmed troubled man in his home in Selden.

Not all departments cite 50-a the same way. For example, the NYPD earlier this year allowed news organizations into internal department trials of the officers who shot unarmed groom Sean Bell on his wedding day in 2006. (Those officers were acquitted criminally, but most were found guilty in department trials and punished.)

Long Island police officials said last week that they would not admit the media to similar proceedings.

The original 50-a law -- sponsored by then-Sen. Frank Padavan of Queens and then-Assemb. Louis DeSalvio of Manhattan -- was designed to prevent criminal defense attorneys from dredging up irrelevant details from an officer's personnel file to undermine that officer's credibility on the witness stand, according to documents filed 36 years ago in support of the legislation. Under 50-a, other than officials such as government attorneys and grand juries to whom the law doesn't apply, only a judge can order the personnel records turned over.

Over the years, the law has been expanded to cover others, including jail and prison guards and firefighters.

Det. Sgt. Israel Santiago, commanding officer of the Nassau police legal bureau, which handles records requests from the public, said the law protects the privacy rights of officers who may have been subject to unfair and unfounded complaints and allows for a disciplinary process untainted by bias.

 

Protects cops from bias

"This is a balancing of public interests," Santiago said.

"Let's face it. We have to protect police officers from what you might call abuse. They're putting themselves out there every day," Santiago said.

He added, "You don't want your disciplinary charges to be judged in the media, and I think it would prejudice the police officers' cases. They have a hard job and people are always second-guessing them."

Deputy Insp. Kevin Fallon, a spokesman for the Suffolk County police, said the law helps protect officers from being unfairly discredited. "I think the intention of the law is to protect the careers of police officers," he said. He added: "Any internal affairs situation would be covered by 50-a."

In both Nassau and Suffolk, people who launch allegations against the police receive general information about the outcome of the complaint, but no specific details, police officials say.

In the Bird case, police have acknowledged, officers failed to enforce a court-issued order of protection Bird had against her obsessive estranged boyfriend or failed to arrest the man when they should have.

Nassau County has agreed to pay out $7.7 million to Bird's mother to settle a wrongful-death lawsuit. The boyfriend, Leonardo Valdez-Cruz, is now serving life in prison.

But different officials have given varying accounts of how many officers -- anywhere from seven to 22 -- were investigated for violating department rules in the Bird case. The particulars of which rules and the officers' roles in violating them remain unknown publicly.

And there's much more to know, according to people who have read the 700-page report.

 

Problem, solution at issue

"The findings in the internal affairs report -- which I can't talk about -- would blow your mind," said attorney Frederick Brewington, who won the settlement for Bird's family and is barred by court order from revealing what he read there.

Freeman said that if records about substantiated misconduct by clerks, teachers, secretaries, sanitation workers and judges are accessible to the public, so should those of police officers.

In a 2010 report, Freeman pushed for the law to be repealed. The effort has been unsuccessful.

Joseph Lo Piccolo, a defense attorney and president of the Nassau Criminal Courts Bar Association, said 50-a can discourage attorneys from taking on police misconduct cases because of "red tape upon red tape upon red tape" required to get records.

Even when civil cases against the police expose malfeasance, Lo Piccolo said, it's all but impossible for the public to know whether police failings -- such as in the Bird case -- have been corrected.

"No one knows because we can't review what the actual alleged problems were in the first place," he said. "What happened? No one can check to see."

In the Bird case, only when the presiding officer of the county legislature, Peter Schmitt (R-Massapequa), spoke in a television news interview did the public learn that, before the slaying, police had given Valdez-Cruz a cellphone to be used as an informant in jail.

Valdez-Cruz was locked up for violating the order of protection and he then used the phone to harass Bird 35 or 40 times, officials said.

Schmitt read that detail in the internal affairs report after signing a confidentiality agreement.

Furious at the disclosure, the rank-and-file officers' union, the Nassau Police Benevolent Association, has asked a judge to hold Schmitt in contempt of court.

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